U.S. v. MENENDEZ

UNITED STATES OF AMERICA,
v.
RAMIRO MENENDEZ and ANGELO LISI, Defendants.

The opinion of the court was delivered by: DEBORAH BATTS, District Judge

MEMORANDUM & ORDER

Before the Court is Defendant Ramiro Menendez' ("Menendez")
pre-trial motions seeking suppression of evidence discovered as a
result of Title III wiretap intercepts, and physical evidence
seized in two difference searches on the day of Menendez' arrest.
In the alternative, Menendez seeks a hearing on his motions,
pursuant to Rules 12 and 41 of the Federal Rules of Criminal
Procedure. Defendant Angelo Lisi ("Lisi") joins in Menendez'
motion to suppress evidence discovered as a result of the wiretap
intercepts.

For the reasons that follow, Defendants Menendez' and Lisi's
motion to suppress is DENIED.

I. BACKGROUND

Defendants Ramiro Menendez ("Menendez") and Angelo Lisi
("Lisi") were indicted by a federal grand jury on March 9, 2004
in a one-count indictment along with Co-Defendants Gustavo
Sierra, Alberto Sierra, Vilma Bido, and Lawrence Russell. The
Indictment charged Defendants with distributing and possessing with intent to distribute, one kilogram and more of heroin from
at least in or about December, 2003 through in or about February,
2004 in violation of 21 U.S.C. § 846. The investigation leading
to the Indictment included three separate interceptions of wire
communications, authorized by Judge John F. Keenan, United States
District Judge for the Southern District of New York.

On April 27, 2004, the grand jury returned a Superceding
Indictment, adding a second count charging Defendants and newly
added Defendants Carlos Ekmeiro,*fn1 Paul Pacheco and
Richard Solbavarro with a money laundering conspiracy in
violation of 18 U.S.C. § 1956(h). The grand jury returned a
Second Superceding Indictment on May 6, 2004, adding Defendants
Ekmeiro, Pacheco and Solbavarro to Count One and a new defendant,
Martha Cobis, to Counts One and Two. A Third Superceding
Indictment was returned on May 18, 2004, adding Defendant Kenyi
Diaz-Perez to Counts One and Two.

Defendant Menendez has filed pre-trial motions for
consideration by the Court. Defendant Lisi has joined in
Menendez' motion to suppress the wire-tap evidence.

II. DISCUSSION

Menendez seeks suppression of wire tap evidence obtained through intereptions of his cellular phone ("Menendez Cellphone")
and Defendant Gustavo Sierra's cellular phone ("Sierra
Cellphone"). Defendant Lisi joins in this motion. Menendez also
moves to suppress any evidence obtained by the Government in two
separate searches which took place on February 20, 2004 in Miami,
Florida. Defendants seek an evidentiary hearing on these issues.

A. Suppression of Wiretap Evidence

Title III of the Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C. § 2510, et seq., regulates the interception of
wire, electronic and oral communications. The procedure for
securing judicial authority to intercept communications is found
in 18 U.S.C. § 2518. The applicant seeking to obtain judicial
authorization for an interception must demonstrate that "there is
probable cause that an individual is committing . . . a
particular offense . . . [and that] normal investigative
procedures have been tried and have failed or reasonably appear
to be unlikely to succeed if tried or too dangerous."
28 U.S.C. § 2518(3). No part of the intercepted communications "may be
received in evidence in any trial, hearing, or other proceeding . . .
if the disclosure of that information would be in violation
of [Title III]." 18 U.S.C. § 2515.

Menendez seeks suppression of the wiretap evidence obtained
from his cellphone and the Sierra cellphone based on the following: (1) the telephone conversations were allegedly not
minimized in accordance with the statutory requirements; (2) the
tapes of the telephone conversations were allegedly not sealed in
accordance with 18 U.S.C. § 2518(8)(a); and (3) the interceptions
were unlawful because the wiretap application failed to establish
with specificity the unavailability of alternative investigative
techniques. The Government opposes Menendez' motion.

1. Standing to Challenge Title III Intercepts

As a threshold matter, the Court will consider the issue of
whether Defendants Menendez and Lisi have standing to bring their
respective challenges to the wiretap evidence. The Government
contends that Defendant Lisi lacks standing to challenge the
minimization procedures on both Menendez and Sierra Cellphones
and that Menendez lacks standing to challenge the minimization
procedures used for calls intercepted through the wiretap on the
Sierra Cellphone.

Under Title III, only an "aggrieved person . . . may move to
suppress the contents of any wire or oral communications
intercepted pursuant to this chapter, or evidence derived
therefrom. . . ." 18 U.S.C. § 2518(10(a). An "aggrieved person"
is defined as "a person who was a party to any intercepted wire,
oral or electronic communication or a person against whom the
interception was directed." 18 U.S.C. § 2510(11). "Standing to challenge evidence obtained through the
use of electronic surveillance techniques requires a showing by a
defendant that his or her voice was heard on the wire or that his
or her telephone was tapped." United States v. Burford,
755 F.Supp. 607, 609 (S.D.N.Y. 1991) (citing United States v. Fury,
554 F.2d 552, 525 (2d Cir. 1977)).

It is clear that Menendez falls within the category of
"aggrieved persons" who may move to suppress evidence obtained
through wiretap interceptions. However, there is no evidence
before the Court, other than the fact that Lisi is included as a
defendant in the Indictment, that demonstrates that Lisi's voice
was heard on the wires intercepted, or that his telephone was
tapped. The Court's review of the Affidavits of Agents
Coppersmith, Argento and Cuartas, (Gov't.'s Mem. of Law at Ex.
B-D), reveals no mention of Lisi. Lisi has not submitted an
affidavit stating that his voice was heard on the conversations
intercepted. The Court therefore finds that Defendant Lisi lacks
standing to make any challenge to the wiretap interceptions.

The Second Circuit has indicated that only a person with a
possessory or proprietary interest in premises on which the
subject telephones are located has standing to contest the
minimization procedures used by law enforcement agents. See
United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir. 1991);
United States v. Fury, 554 F.2d, 522, 526 (2d Cir. 1977); see also United States v. Greyling, 2002 WL 424655, at *4
(S.D.N.Y. Mar. 18, 2002). Menendez lacks possessory or
proprietary interest in the Sierra Cellphone and therefore cannot
challenge the minimization procedures for calls intercepted over
the Sierra Cellphone. Accordingly, the Court will only address
Menendez' minimization challenge to the wiretap issued for the
Menendez Cellphone.

2. Minimization

Menendez claims that the Government failed to comply with
minimization requirements, contained in 18 U.S.C. § 2518(5), and
that the evidence obtained through the interception of the
Menendez Cellphone must therefore be suppressed.

Section 2518(5) provides that

Every order and extension thereof shall contain a
provision that the authorization to intercept shall
be . . . conducted in such a way as to minimize the
interception of communications not otherwise subject
interception under this chapter. . . .

Judge Keenan's Orders contained such a provision. (Gov't.'s Mem.
of Law at Ex. A.)

The Supreme Court stated in Scott v. United States that Title
III "does not forbid the interception of all nonrelevant
conversations, but rather instructs the agents to conduct the
surveillance in such a manner as to `minimize' the interception
of such conversations." 436 U.S. 128, 140 (1978). "Minimization in the context of a wiretap only requires a reasonable effort to
minimize the interception of irrelevant calls." United States v.
McGuinnes, 764 F.Supp. 888, 900 (S.D.N.Y. 1991) (citing United
States v. Manfredi, 488 F.2d 588 (2d Cir. 1973), cert.
denied, 417 U.S. 936 (1974)). "Minimization efforts are to be
judged by a standard of reasonableness in the context of the
entire wiretap, as opposed to a chat-by-chat analysis."
McGuinness, 764 F.Supp. at 901. Reasonableness is determined by
the facts and circumstances of each case. Scott,
436 U.S. at 140.

If the Government has made a prima facie showing of compliance
with the statute, a defendant must overcome that showing by
demonstrating "that a substantial number of nonpertinent
conversations [have] been intercepted unreasonably." United
States v. Pichardo, No. 97 Cr. 233, 1999 WL 649020, at *5
(S.D.N.Y. Aug. 25, 1999) (citing United States v. Cirillo,
499 F.2d 872, 881 (2d Cir.), cert. denied, 419 U.S. 1056 (1974)).
Even if a substantial number of nonpertinent conversations had
been intercepted, the statute is not violated and a hearing is
not warranted as long as a "good faith effort to achieve
minimization" is demonstrated by the Government. United States
v. Cirillo, 499 F.2d 872, 881 (2d Cir.), cert. denied,
419 U.S. 1056 (1974).

Minimization is generally inapplicable to calls of less than
two minutes in duration because they are "too brief a period for an eavesdropper even with experience to identify the caller and
characterize the conversation." United States v. Capra,
501 F.2d 267, 275-76 (2d Cir. 1974). In addition, certain measures
taken by the Government are helpful in establishing compliance
with the minimization requirement. "These measures include: (1)
maintenance of monitoring logs, (2) judicial supervision of the
surveillance process through, e.g., the provision of periodic
reports, (3) the provision of written and oral instructions to
monitoring personnel concerning the legal requirements for
minimization and log-keeping, and (4) supervision by the
prosecutor." Pichardo, 1999 WL 649020, at *6 (internal
citations omitted).

The Government has represented to the Court that it took the
following measures to comply with the minimization requirement:
it provided minimizing instructions to monitoring personnel; such
personnel were required to read and sign instructions and
maintain monitoring logs; and period reports were submitted to
the court, including a report of the percentage of calls
minimized. (Gov't.'s Mem. of Law at 6-7.)

Menendez argues that the minimization requirement has not been
met and states that Defendant was recorded talking to friends and
family members, talking about his dog and his car, talking about
his diet, and talking to his lawyer and his lawyer's secretary
despite the fact that the wiretap order stated that Defendant's right to counsel would not be violated.
Defendant also lists the total number of call intercepted and the
number of calls minimized in each report submitted to the court.

Menendez, however, has failed to demonstrate that the
Government unreasonably intercepted a substantial number of
irrelevant phone calls. He gives examples of types of
conversation that may have occurred without referring to any
specific conversation or phone call. As the Government states,
merely identifying "non-pertinent topics of conversation" cannot
establish that the telephone calls were irrelevant and should
have been minimized because such conversations may have included
relevant topics of conversation.

Accordingly, the Court finds that the Government has
demonstrated a good faith effort to comply with the minimization
procedures. Menendez has failed to meet his burden of
demonstrating that the Government's efforts were unreasonable.
Therefore, a hearing is not required and Menendez' motion to
suppress the wiretap evidence on the ground that the Government
violated the court order by failing to comply with minimization
procedures is DENIED.

3. Sealing of the Tapes

Section 2518(8)(a) of Title 18 requires that "[i]mmediately
upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge
issuing such order and sealed under his directions."

Menendez argues for suppression of the wiretap evidence due to
an alleged non-compliance by the Government with this
requirement. The Government, in its response, states that
"Menendez' claim is puzzling in light of the fact that the
Government provided copies of all sealing orders for the Sierra
Cellphone and Menendez Cellphone wiretaps more than a year ago as
part of its initial discovery disclosures." (Gov't.'s Mem. of Law
at 10.) The Government attached copies of these sealing orders to
its memorandum of law. Defendant has not responded to this
statement by the Government.

Based on the sealing orders provided by the Government, the
Court finds that Menendez' motion to suppress the wiretap
evidence on the ground that the wiretaps were not properly sealed
is without merit and is DENIED.

4. Alternative Investigative Techniques

Menendez argues that the wiretap evidence must be suppressed
because the wiretap application failed to establish with
specificity the unavailability of alternative investigative
techniques. Menendez claims that affidavits by law enforcement
personnel support the argument that "conventional investigative
techniques were working." Specifically, Menendez contends that the wiretap applications all contained the same boilerplate
language without stating which investigative procedures had been
tried and failed. He also claims that the affidavits by
government agents reveal that at least one informant was active
when the original application was issued, and three informants
were documented in Agent Coopersmith's affidavit, dated January
13, 2004.

Section 2518(1)(c) requires that any application for
interception of a wire, oral or electronic communication include
"a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be too
dangerous. . . ." Similarly, the judge reviewing such an
application must determine whether on the basis of the facts
submitted, "normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed if
tried or to be too dangerous." 18 U.S.C. § 2518(3)(c). In
reviewing the issuance of a wiretap order, the issuing judge's
determination of compliance with § 2518(1)(c) is entitled to
substantial deference. See United States v. Torres,
901 F.2d 205, 231 (2d Cir.), cert. denied, 498 U.S. 906 (1990);
United States v. Wilkinson, 754 F.2d 1427, 1433 (2d Cir.),
cert. denied, 472 U.S. 1019 (1985).

Section 2518(1)(c) "is simply designed to assure that wiretapping is not resorted to in situations where traditional
investigative techniques would suffice to expose the crime."
United States v. Kahn, 415 U.S. 143, 153, n. 12 (1974). The
statute does not require that all normal investigative techniques
be exhausted; rather it is only required that "the agents inform
the authorizing judicial officer of the nature and progress of
the investigation and of the difficulties inherent in the use of
normal law enforcement methods." United States v. Torres,
901 F.2d at 231; United States v. Young, 822 F.2d 1234, 1244 (2d
Cir. 1987); United States v. Vasquez, 604 F.2d 1269, 1282 (2d
Cir.), cert. denied, 444 U.S. 981 (1979). The Government's
application "need only `provide some basis for concluding that
less intrusive investigative procedures are not feasible.'"
United States v. Pichardo, No. 97 Cr. 233, 1999 WL 649020, at
*4 (S.D.N.Y. Aug. 25, 1999) (quoting United States v. Lilla,
699 F.2d 99, 103 (2d Cir. 1983)).

The Government has provided the Court with the affidavits of
Special Agents Darren Argento, Dana Coppersmith and Mauricio
Cuartas, which were submitted to Judge Keenan in support of the
Government's applications for interception of communications made
on the Menendez and Sierra Cellphones. These affidavits describe
in detail the traditional investigative techniques that had been
used, such as telephone toll records, pen registers, and
interviewing witnesses. In their affidavits, the Agents explain why these methods could provide only limited information and
could not reveal the scope of the conspiracy. They also explain
that confidential informants*fn2 had previously been used,
as Menendez points out, but could no longer be used as
confidential informants. The Agents also set forth reasons why
physical surveillance, undercover agents, grand jury proceedings
or search warrant would likely prove unsuccessful at that
particular juncture of the investigation. (Argento Aff. ¶ 37;
Coppersmith Aff. ¶ 55.)

Based on the Government's affidavits, the Court finds that
Judge Keenan had more than an adequate basis to conclude that the
interceptions of the target Cellphones were necessary. Menendez'
motion to suppress the wiretap evidence based on failure to
comply with § 2518(1)(c) is DENIED.

B. Suppression of Physical Evidence

Menendez moves to suppress physical evidence obtained from two
separate searches which took place on February 20, 2004 in Miami,
Florida. Menendez moves to suppress 5 kilograms of heroin found
in a Ford Explorer he was driving but which had been rented in
the name of Co-Defendant Lawrence Russell. He also seeks to suppress 3 kilograms of heroin found in a storage unit he rented
in the Public Storage facility. Menendez requests a hearing to
address the issues raised regarding the two searches.

1. Suppression of Evidence Found in Vehicle

As an initial matter, a defendant seeking to suppress evidence
recovered in a warrantless search bears the burden of
demonstrating that he had a reasonable expectation of privacy in
the area searched. See Rakas v. Illinois, 439 U.S. 128, 143
(1978); United States v. Osorio, 939 F.2d 38, 40 (2d Cir.
1991); United States v. Paulino, 850 F.2d 93, 96 (2d Cir.
1988). It is not only the owner of a vehicle that may have a
Fourth Amendment privacy interest in the vehicle that is
protected against governmental invasion; a borrower of the
vehicle can also possess such an interest if he can show, among
other things, a legitimate basis for being in it, such as
permission from the owner. See United States v. Ponce,
947 F.2d 646, 649 (2d Cir. 1991), cert. denied, 603 U.S. 943
(1992). However, a legitimate expectation of privacy cannot be
established by demonstrating mere occupancy or control of a
vehicle, because a vehicle may have been stolen. Ponce,
947 F.2d at 649.

Defendant conclusorily states that he had an expectation of
privacy in the vehicle he drove. However, the rental receipt
establishes that the car was rented by Lawrence Russell; Menendez is not mentioned.

Menendez has set forth no other facts or support for his
alleged expectation of privacy. The Court finds that Menendez'
showing is insufficient and therefore, he lacks standing to
challenge the search of the vehicle.

Even if Menendez had standing to challenge the search, the
Court also finds that the search of the vehicle was lawful
because there was probable cause to believe that the vehicle
contained contraband. "[P]olice may search an automobile and the
containers within it when they have probable cause to believe
contraband or evidence is contained [therein]." California v.
Acevedo, 500 U.S. 565, 680 (1991). Interception of
communications on the Menendez Cellphone gave law enforcement
officers probable cause to believe that the rental car driven by
Menendez contained narcotics. While in the rental car, Menendez
made references to the narcotics contained in the car. Based on
this information, the Agents had probable cause to search the
vehicle and any containers within the vehicle suspected to
contain contraband. Accordingly, the Court DENIES both Menendez'
motion to suppress the evidence seized from the rental car and
his request for a hearing.

2. Suppression of Evidence Found in Storage Unit

Defendant Menendez moves to suppress evidence found in a storage unit rented by him. He argues that there were "no exigent
circumstances attending that negated the agents obtaining a
search warrant." Menendez however concedes that the Government
had probable cause to search the unit, "given the prior seizure
of drugs in the car" and the fact that canines trained in
narcotics detection had alerted to the possible presence of
narcotics in the storage unit. He also concedes that he signed a
Spanish consent form freely and voluntarily, consenting to the
search of his storage unit. Nevertheless, Defendant argues that
the consent form is "legally insufficient to establish a free and
voluntary consent" because it failed to advise him of his right
to refuse, his right to counsel and right to stop the search.

"A warrantless search does not violate the Fourth Amendment if
the owner or lawful custodian consents to the search." United
States v. Arbalaez, No. 98 Cr. 941, 1999 WL 980172, at *4
(S.D.N.Y. Oct. 27, 1999) (citing Schneckloth v. Bustamonte,
412 U.S. 218, 226 (1973) and United States v. Garcia, 56 F.3d 418,
422 (2d Cir. 1995)). The Government bears the burden of
demonstrating that "consent [to search] was in fact voluntarily
given, and not the result of duress or coercion, express or
implied." Schneckloth, 412 U.S. at 248. In order to determine
if the consent was given voluntarily, the court must examine all
the surrounding circumstances. United States v. Deutsch,
987 F.2d 878, 883 (2d Cir. 1988). "[K]nowledge of the right to refuse consent is not a requirement." Garcia, 56 F.3d at 422.

In this case, Menendez has stated that he freely and
voluntarily gave consent to search the storage unit, and that he
was not threatened or forced in any way. The Court finds that
there is no need for a hearing where Defendant has failed to
specify any contested issues of fact concerning the validity of
the search of the storage unit, and in fact, has conceded that he
consented to the warrantless search, freely and voluntarily.
See e.g., United States v. Watson, 404 F.3d 163, 167 (2d
Cir. 2005) ("[A]n evidentiary hearing on a motion to suppress
ordinarily is required if the moving papers are sufficiently
definite, specific, detailed and nonconjectural to enable the
court to conclude that contested issues of fact going to the
validity of the search are in question.").

III. CONCLUSION

For the foregoing reasons, the Court finds that Defendant Lisi
lacks standing to challenge the wiretap interceptions. Defendant
Menendez' motion to suppress wiretap evidence is DENIED. His
motion to suppress physical evidence seized from searches of the
rental car and his storage unit is also DENIED. The next status conference date is set for July 11, 2005 at
11:00 AM. In the interests of justice, time has already been
excluded until that date.

SO ORDERED.

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